What’s New to Boston College Subpoena News – The Latest Additions to the Site

The subpoena of Boston College’s oral history archives are rooted in a desire to sue Gerry Adams, and the criminal case, where the archives will have no value, is being used to access the archives for use as evidence in a future civil suit.

The Moloney & McIntyre hearing in the First Circuit Court of Appeals is next week, Wednesday, April 4th. Oral arguments will be presented to a panel of judges: Chief Judge Sanda L. Lynch, and Circuit Judges Juan R. Torruella and Michael Boudin.

Over the last month there has been more political movement from members of Congress, questions over Boston College’s credibility were raised, the last filings from the US Attorney and Moloney and McIntyre were submitted, Irish America kept the pressure on, and more. Here’s a round-up of the issues covered:

Over the weekend, Judge Young ordered at least a third of the Republican archive to be turned over; in a rare Saturday filing, the Department of Justice immediately asked for even more of the archive. Loyalist interviews are also involved. Currently, Moloney and McIntyre’s lawyers have obtained a Motion for Stay in the Appeals Court which means no material will be moving from the court until that Motion is heard in March.

Tomorrow, January 24th, Judge Young will be holding a hearing regarding Moloney and McIntyre’s Complaint and the Department of Justices’s Motion to Dismiss. Former Belfast Project Lead Researcher Anthony McIntyre’s wife, Carrie Twomey, will be in attendance. Dr. McIntyre’s wife and their two children are all American citizens and Ms Twomey has been in Washington DC this week raising her concerns for the safety of her family. The Irish American Unity Conference, the Brehon Society and the Ancient Order of Hibernians will hold a press conference after the hearing which is being held at Boston College.

“In attendance will be Ned McGinley, former National President of the AOH representing Seamus Boyle current National President; Jim Cullen representing Robert Dunne, President of the Brehon Law Society, and Michael J. Cummings representing Thomas Burke, President of the Irish American Unity Conference.
This coalition of Irish-American groups has been joined by journalists, historians involved in Oral History projects, law professors, and human and civil rights activists in protesting this politically motivated fishing expedition which it is feared will destabilize a peace process that is only beginning to take root in the North.
Moreover it is believed that it would be unconscionable forAttorney General Holder to respond to this British request in light of Prime Minister Cameron’s refusal to hold a promised public inquiry into the murder of attorney Patrick Finucane (a murder in which he admits the government collaborated) and the refusal of the Prime Minister to respond to the Unanimous Declaration of Dail Eireann (Irish Parliament) for information on the Dublin Monaghan bombings.”

The leader of Fianna Fáil, Micheál Martin, has questioned whether the IICD’s deposit of the politically sensitive decommissioning documents at the Burns Library in Boston College will be protected by the embargo promised by Boston College.

“What is of major concern is that these papers have been given to an institution outside the island of Ireland which is now involved in a major controversy about protecting the integrity of its sealed archive.”
“[…] the fact that there is a question mark over the ability of Boston College to protect sensitive political papers in their archives from premature release is an issue of real concern.”

Boston College, for its part, believes that the British and Irish governments will not attempt to access the documents:

In a statement to the BBC, Boston College said: “There is no conceivable reason why the British or Irish governments, which set the terms for the International Independent Commission on Decommissioning (IICD) papers when they were sent to the college, would break those terms.”

However, it must be remembered that, prior to being served with a subpoena from the US Department of Justice, Boston College could not imagine a conceivable reason why the British or Irish governments would attempt to access the Belfast Project archives, either. And, to add insult to injury, when questioned about the possibility of a the British Government using the US Department of Justice to issue a second subpoena seeking broader access to the full archive, Boston College believed that it was unlikely to happen.

Yet a second subpoena did arrive and Boston College has since given the archive to the US Court. Its handover to British authorities is currently being contested by the project director and researcher – not by Boston College. So if the decommissioning archives were sought by anyone – not necessarily the British or Irish Governments – Boston College’s ability, and willingness, to keep them secure is dubious, as dubious as Boston College’s understanding of the risk posed to their embargos.

BACKGROUND

“The transcripts of interviews with Irish Republican Army and Ulster Volunteer Force veterans, most of whom were operationally active, are housed at the University’s Burns Library and are subject to prescriptive limitations governing access. Boston College is contractually committed to sequestering the taped transcriptions unless otherwise given a full release, in writing, by the interviewees, or until the demise of the latter.”
“Boston College has had a long interest in Ireland and offered a welcoming and neutral venue in which participants felt a sense of security and confidentiality that made it possible for them to be candid and forthcoming.” – Professor Thomas Hachey and Robert O’Neill, director of the John J. Burns Library, Preface to Voices From the Grave.

The Senate Foreign Relations Committee held a series of hearings on the subject. The Ancient Order of Hibernians, the Brehon Law Society, and the Irish American Unity Conference led the opposition to the new treaty.
On at least eight occasions during the hearings, the British Government and the U.S. Justice Department assured the Senate that pre-GFA offenses arising from the conflict in Northern Ireland would be off the table for extradition under the new treaty.
The Senate eventually ratified the 2003 Extradition Treaty in 2006. The Senate partially accepted Britain’s assurances about pre-GFA offenses being off the table, but felt compelled to incorporate those assurances into the treaty ratification, itself.
The whole story is laid out in Congressional Research Service Report for Congress, “Extradition Between the United States and Great Britain: The 2003 Treaty”.
The Mutual Legal Assistance Treaty (MLAT) and extradition treaty are closely connected. They were negotiated, signed, considered by the Senate, and ratified contemporaneously.

It appears that the Boston College subpoenas are the first time that Britain has sought U.S. subpoenas for offenses stemming from the conflict in Northern Ireland, ostensibly ended with the GFA 13 years ago.
When the MLAT was signed and approved by the U.S. Senate, there was no ostensible reason to believe that the MLAT would be used for subpoenas for pre-GFA offenses, especially in light of Britain’s assurances that pre-GFA offenses were off the table.

“Release of the materials sought by the subpoenas would be contrary to the foreign policy and national security interests of the United States because they have a high potential for severely undermining the peace process which has been an important foreign policy objective of the United States for the past fifteen years. As you are aware, the United States, under the administration of President Clinton, was a principal architect of the Good Friday Agreement, or “GFA” (also known as the Belfast Agreement) signed in 1998 by the United Kingdom and the Republic of Ireland. The results of this historic agreement have been the establishment of stability and relative calm to the North of Ireland.”

“In sum, the information sought has a serious potential for destabilizing the peace process and, by extension, U.S. national security interests.”

According to Ned McGinley, a former national president of the Ancient Order of Hibernians, another group contesting the subpoena, releasing the documents could endanger the people interviewed.
“Those interviews are not evidence. They were not taken under oath,” McGinley said in a phone interview. The subpoenas are “really objectionable for three reasons. The principle reason being of course the subpoenas have nothing to do with foreign policy and national security of the United States. The release of those oral histories could endanger the lives of those who provided them.”

❡ The 2010 interview with Dolours Price conducted by Allison Morris of the Irish News is a central issue to the foundation of the subpoena. The first subpoena was served on 5th May, 2011, after proceedings were initiated on the US side at the end of March, 2011.

In the Motion to Quash the subpoena filed by Boston College on 7 June, 2011, Ed Moloney states in his affidavit:

31. In February 2010, I learned that Dolours Price had been interviewed about her life in the IRA by a Belfast morning daily newspaper called the Irish News. This report made no mention of the fact that she had been previously interviewed for the Belfast Project even though she had told this to the Irish News, but that fact was later published in the Sunday Life, a small Sunday newspaper in Belfast which had been made privy to the unpublished parts of her Irish News interview. The interview had been tape-recorded, I understand, by the Irish News and the tape passed on to the Sunday Life by the reporter for the Irish News who had interviewed Dolours Price. It was, to the best of my knowledge, the Irish News tape that the Sunday Life reporter referred to having heard and this was the source of their report that she had been interviewed by the Belfast Project. Neither newspaper could have heard her Belfast Project interviews because the only tapes and transcripts of those interviews are stored at the Burns Library at Boston College. I did not know about the Sunday Life story or the details of what it had published until recently. (Sec 31, page 10)

The US Government, in its Opposition to the Motion to Quash argues:

Ms. Price’s interviews by Boston College were the subject of news reports published in Northern Ireland in 2010, in which Ms. Price admitted her involvement in the murder and “disappearances” of at least four persons whom the IRA targeted: Jean McConville, Joe Lynskey, Seamus Wright, and Kevin McKee. See Exhibits 1 and 2. Moreover, according to one news report, the reporter was permitted to listen to portions of Ms. Price’s Boston College interviews. Id. (Page 4)

Boston College elaborates in its reply to the Government’s Opposition:

4. Dolours Price had no ability to, and did not, disclose tape-recordings of her Belfast Project interviews to a newspaper reporter.

To sow doubt whether Dolours Price in fact expected and relied on the confidentiality of her Belfast Project interviews, the Government mistakenly asserts that “according to one news report” a reporter has been “permitted [by Dolours Price] to listen to portions of Ms. Price’s Boston College interviews” (Gov. Op. at 4, citing Exs. 1 and 2 to the Government’s Opposition).

The Government’s sole support for this mistaken assertion is a news clipping (Exhibit 1 to the Government’s Opposition) of an article in the February 21, 2010, edition of Sunday Life, a small Belfast weekly newspaper (Moloney Affidavit (D. 5-5), ¶ 31). But that article does not say that the tape recordings heard by the reporter were from Dolours Price’s Belfast Project interviews. The Government assumes that the article’s report of the reporter hearing certain tape recordings of Dolours Price (Ex. 1, ¶¶ 3, 7, and 20) refers to the same tape recordings that the article later describes as Dolours Price’s “taped confessions of her role in the abductions to academics at Boston University [sic]” (id., ¶ 30). That assumption is wrong.

Anthony McIntyre, the person who interviewed Dolours Price for the Belfast Project, swears that neither Dolours Price nor any of the others he interviewed for the Belfast Project were provided the tape recordings of their interviews (McIntyre Affidavit (D. 5-4), ¶¶ 10 and 14). In his affidavit in support of Boston College’s Motion to Quash, the Director of the Belfast Project, Ed Moloney, explains that Dolours Price gave a tape-recorded interview to a reporter for a different newspaper, the Irish News, that the tapes of that interview were passed on to a reporter for Sunday Life, and that it is the tape recordings of Dolours Price’s interview with the Irish News that the Sunday Life reporter apparently was allowed to hear (Moloney Affidavit (D. 5-5), ¶ 31).

There is no evidence that Dolours Price has disclosed the tapes of her Belfast Project interviews to anyone. (Sec 4 page 6)

It is now understood that the PSNI approached Allison Morris of the Irish News in June, 2011, after the subpoena was served on Boston College and after Boston College’s Motion to Quash, including Moloney’s affidavit, was filed. Morris has written: “The Irish News was approached by the PSNI in June this year. The police were informed I had not retained any material in relation to my discussion with Ms Price and had nothing further to add to what had appeared in The Irish News in February 2010.”

The latest additions to the site this week focus on Court Changes, new filings, the Irish Presidential election, and a look at the documentary based on two of the Boston College tapes.

COURT CHANGES

❡ In an oddly timed move, occurring some 3 months since he was first assigned to the case, Judge Joseph L. Tauro has recused himself from the case. His son is a partner at the same firm representing Boston College. Why did this take 3 months to become an issue? And who requested he remove himself? Not even the judge knows; the submissions arguing for and against are sealed. He is replaced by Judge William G. Young. This is now the 3rd Judge the case has had since Judge Richard G. Stearns was added on 31 March. Stearns also lasted a little over 3 months – will Young go the distance?

COURT DOCUMENTS

❡ The US Attorney has filed a motion opposing the Intervenors motion to file a reply. Echoing Emperor Joseph II’s complaint of Mozart’s work from the movie Amadeus, “Too many notes!”, the government would prefer to see a speedy resolution involving less documentation.

“Having already filed 157 pages of pleadings and attachments with their initial motion [D.18], the putative intervenors now seek to file an additional pleading of unspecified length. [D.25] The grounds for their request essentially are that there are “substantial issues at stake” and “matters of first impression” at issue. [D.25 at 1-2]. The putative intervenors neither claim that the government’s response raises any new issues, nor that there are any issues which now need to be briefed of which they were not aware at the time they filed their initial brief. Allowing a reply memorandum would simply delay resolution of this matter, permit duplicative and unnecessary briefing in this case, and reward the putative intervenors for failing to state their complete case in their initial pleading.”

NEWS COVERAGE

❡ Dublin’s Evening Herald raises the issue of the Boston College tapes in the context of the current Irish Presidential election. Martin McGuinness, well known as a senior member of the IRA with a history that goes back to the early 1970s, is running as an ‘independent’ candidate. He has temporarily stepped down from his post as Deputy First Minister in the Stormont Executive, a position he holds in his capacity as a Sinn Fein leader. Because of his involvement in the IRA, his bid to become President of Ireland means his past is being looked at with renewed interest. The Herald suggests the Boston College tapes could play a part in the election: “A US COURT could seriously hamper Martin McGuinness’ presidential hopes if it rules to release confidential IRA tapes to the PSNI.” Its headline suggests McGuinness could face questioning.

❡ David McKittrick, while not discussing the Boston College tapes, writes in the Irish Independent about McGuinness’ past and explores reasons why he is lying about it now. This link is included in our ‘News of Interest’ section, where recent stories covering issues relevant to the Boston College issue are noted.

BACKGROUND INFORMATION

❡ Two of the interview series contained in the Boston College archives were made into the book and documentary of the same name, Voices from the Grave. This award winning documentary was first aired in October, 2010, on the RTE network in Ireland. Based on the interviews with Brendan Hughes and David Ervine, the documentary’s power derived in part from being able to hear these two men speak. The documentary is now available online in 9 parts on YouTube: Voices from the Grave

3 October 2011

This week has seen more court filings and news coverage. Constitutional issues and threats to civil liberties feature.

9. In their Motion for Leave to Intervene, the Intervenors seek to raise substantial questions with regard to their constitutional rights under the First and Fifth Amendments; the rights or obligations of both the U.S. and the U.K. under another bilateral agreement relating to the subject matter of the subpoenas; whether the request for assistance (a) would impair the essential interests of the United States (b) would be contrary to important public policy considerations of the United States; and, (c) is directed to an offense of a political character; whether the Government’s actions were arbitrary, capricious or an abuse of discretion, or otherwise not in accordance with law; and whether the request for assistance is unreasonable or oppressive contrary to F.R. Crim.P. 17(c)(2).10.

“Leaders of the Ancient Order of Hibernians, Irish American Unity Conference and the Brehon Law Society have joined in protesting subpoenas of records and tapes held by the Burns Library archives of Boston College.
After a series of meetings, representatives of the groups agreed that not only were there valid legal arguments for opposition to the subpoenas, but also foreign policy and morals grounds for doing so.”

“Jim Cullen, spokesman for the Brehon Law Society, acknowledged in a statement that other Brehon lawyers and those designated by the AOH and IAUC, were in agreement that meetings with U.S. Senator John Kerry (D-MA), chairman of the Senate Foreign Relations Committee, and U. S. Representative Richard Neal (D-MA). chairman of the Ad Hoc Committee for Irish Affairs, and others would be undertaken in order to fight the release of any records to the British government “and/or whatever rogue or dissident elements of the PSNI” may have prompted the subpoenas.”

Brian Rowan from the Belfast Telegraph has described why journalists, especially in Northern Ireland, need to be able to protect their sources: “If people want to read, listen to and watch the news, then they need to understand what gathering that news entails. That it involves going into dangerous situations. It means protecting sources in order to gather the best information to inform those who are reading, listening and watching.”
Ed Moloney, who directed the Boston project, told Radio Free Eireann that this case goes beyond Northern Ireland:

“This has huge implications for historians and journalists in America. It is going to make it far more difficult to get the stories of the actual people who participate in conflicts. If you are interviewing a Black activist from Brooklyn or the Bronx, you are going to be looking over your shoulder because the New York Police Department can come after it to put him in jail.”

Now there is an even more alarming threat to civil liberties. The latest Justice Department legal brief contends that not even the courts can review the attorney general’s decision in this case. It argues: “The determinations of the Attorney General challenged in this case are textually committed entirely to his discretion.”
It claims the courts have absolutely no role: “To recognize a right to judicial review of such determinations would entangle the courts in national policy decisions.”
If the courts accept this, it will mean that anytime a foreign government wants information, the attorney general, at his or her sole discretion, can force it to be handed over. It will become a political decision based entirely on U.S. foreign policy.

“Former U.S. Army JAG Corps general, James Cullen, has presented the force with a letter of protest written by him and on behalf of the Brehon Law Society.

Cullen said he had been “frank” during a meeting with Chief Superintendent Alan Todd at PSNI headquarters in Knock. Cullen said that he had outlined the Brehon position as to why the force should refrain from seeking the Boston College archive material by means of a subpoena issued by the U.S. Attorney’s Office in Boston.

“Americans can be known for their frankness, and I was exactly that with Chief Superintendent Todd about the feelings of the Brehon Society, and Irish America in general, over this issue,” Cullen said.
“Have the PSNI really considered the impact that seeking to access these tapes will have? People are beginning to ask is this a legacy of the old RUC creeping back?
“The subpoena will make those in universities who wish to conduct valuable research into the conflict here, research that can even aid peace and reconciliation, impossible,” he said.”

25 September 2011

Court documents, analysis and background information are new to the site this week.

The implications of this argument are extraordinary. If it’s correct… Okay, let me start over again: If it prevails, then once the DOJ agrees to a foreign request, you have fewer rights against legal proceedings requested by foreign governments than you do in legal proceedings undertaken solely by your own government. If the British want your documents, and the DOJ says yes, that’s it.
So the premise here is that foreign governments have essentially unrestricted rights to obtain legal evidence in the U.S., subject only to the discretion of Eric Holder, and the courts and those subject to search and seizure have no avenue by which they can restrict the performance of the searches and seizure in question. I know I’m saying the same thing over and over again in different words. I mean to.
If it succeeds, this argument is the death of the Fourth Amendment — the death of it, period — in legal matters originating with foreign governments.

Background information, news coverage and a little history feature in the latest updates to the site.

HISTORY

❡ Fearghal McGarry’s book, Rebels: Voices from the Easter Rising, based on the oral histories gathered by the Bureau of Military History, was reviewed in the Irish Times this week. It was these records that Boston College’s Belfast Project modelled itself after: History Remembered by the People Who Were There

BACKGROUND INFORMATION

A number of pages have been added to the Background section, including:

❡ Who was Brendan Hughes? His interviews for the Belfast Project were one of the archives sought under the first subpoena served to the Burns Library. After his death in 2008, which lifted the terms of the confidentiality agreement, the book and documentary, Voices from the Grave, were published. In April, 2011, the Family and Friends of Brendan Hughes held their first annual Brendan Hughes Debate and Discussion at the historic Conway Mill in West Belfast. They asked lead researcher for the Belfast Project, Anthony McIntyre, to deliver the inaugural lecture. Brendan Hughes: A Life in Themes

❡ At the end of March, 2011, the Burns Library was chosen to house the papers of the IICD, a body set up by the British, Irish and US governments to disarm the IRA and other paramilitary groups. Confidentiality was, and remains, a key part of their ability to decommission paramilitary weapons. In May, 2011, a month after the IICD’s embargoed papers were deposited at Boston College, the US Attorney served the first subpoena on behalf of the British Government seeking access to the library’s confidential oral history archives. Final Report of the Independent International Commission on Decommissioning

“We have not included with this report copies of correspondence sent to the Commission by private individuals as these might be subject to privacy considerations. Also as directed by Ref. D, we consulted with the Northern Ireland political parties at the outset of our mandate and received from them papers setting out their views on decommissioning. These were provided in confidence and along with the private correspondence they will be deposited with our files for safekeeping by Boston College, Massachusetts, USA, subject to an embargo on their disclosure for thirty years.”

“… the police efforts to use the Boston College archive in a criminal investigation could, he said, deter others from helping the commission.
“We’ve had some concerns expressed to us, very serious concerns, by intermediaries and others who we deal with on a day-to-day basis,” he said.
“They have flagged this up. We were concerned about it, they too have flagged it up, without any prompting from us.
“And we appreciate that this will put people off, or potentially put people off, from contacting us with information. But it’s our lifeblood. It’s what we survive on.”
He added: “If it’s putting them off, we need to make it absolutely clear that it’s not the way we do things.
“We appeal for information always. We don’t adopt the sort of approaches that are clearly being adopted here. It’s not what we would do.”
Mr Knupfer said he was unaware if any cases had already been adversely affected by the issue.
But he said losing contact with potential sources of information could endanger the chances of securing closure for the families of the remaining Disappeared.
“Of course it might. The whole ethos of this is information. It’s based on information and if the information isn’t available, then sadly we can’t do an awful lot to resolve the heartache of the families concerned.”
The commission investigator said he had no reason to believe Boston College held information which may be of help to his work.”

NEWS COVERAGE

A number of articles gave coverage to the case in the news media this week:

“Do you believe that those who committed crimes in the past should be granted amnesty or anonymity for their testimony under certain circumstances? Why or why not? How do you think a country or group of people can most effectively address past injustices to lay the foundation for a more just future?”

“There’s no reason why the U.S. has to be party to this investigation. Boston College is right to resist the demands of both the Justice Department and the PSNI. After all, if Washington and London can keep secrets in the interests of peace or public order, or whatever other reason they might have, an academic institution has a right and a responsibility to keep confidential files confidential.”

“The Eye has also learnt that the subpoenas are based on a false claim that one of the interviews with Price, published in the Sunday Life newspaper in February last year, was based on an interview with the Boston College project – suggesting it had already put recordings in the public domain. That is not true; and no doubt the college will hope that this fundamental flaw in the legal process could lead to the quashing of the subpoenas.”

❡ The week ended with Radio Free Eireann, broadcasting on WBAI out of New York, devoting Saturday’s show to an examination of the case, interviewing Belfast Project Director Ed Moloney, Lead Researcher Anthony McIntyre and their lawyer, Eamonn Dornan. The program can be downloaded as an MP3 file here – right click, save as: http://archive.wbai.org/files/mp3/wbai_110917_130046rfeireann.mp3

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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